Lawmakers in West Virginia occasionally like to shake things up. But new legislation set to take effect in June could soon redefine the richter scale in the world of state tort law, which governs how lawsuits are judged and damages are awarded.
Beginning next month, West Virginia will adopt the comparative fault – or several liability – standard of apportioning damages in a suit as a replacement for its previous joint and several liability standard. The new law, which repeals sections 55-7-13 and 55-7-24 of the West Virginia code and replaces it with new sections 55-7-13(a)—(d), will place West Virginia among the ranks of a growing minority of states that have adopted similar reforms, including Alaska, Arizona, Arkansas, Connecticut, Florida, Georgia, Indiana, Kansas, Kentucky, Michigan, Oklahoma, Tennessee, Utah, Vermont, and Wyoming.
What Is Joint and Several Liability?
If a driver runs a red light and hits your car at an intersection, but your injuries are more severe than they should have been due to a fault in the airbag installation, who is responsible to pay the damages? Under a joint liability standard, both the driver and the car manufacturer are responsible for the full amount of damages awarded by the court (although you can only collect once). If you choose to sue the driver and the court awards you $100,000, the driver would have to pay the entire amount, even if the manufacturer was partially at fault. Currently, no state has a pure joint liability law for negligence.
Under a several liability standard, the court would determine comparative fault – or the percentage of fault each party bears. If the court finds that the driver was 60% at fault and the manufacturer was 40% at fault, the driver would have to pay $60,000 and the manufacturer $40,000. Approximately 17 states, now including West Virginia, use this standard or a modified version of it when trying negligence cases.
West Virginia’s previous joint and several liability standard combined both of these ideas. Both the driver and the manufacturer would be liable to pay you the full amount, and you could sue either party. However, the court would also assign comparative fault to the parties involved. If the manufacturer had to pay you the full damages, the company could then sue the driver for his $60,000 responsibility.
What Will Change Under Comparative Fault?
Under West Virginia’s new comparative fault law, injured parties will no longer be allowed to sue a single party for the full award. The court will now assign percentages of fault to each party involved and the plaintiff will collect a portion of the damages from each.
On a practical level, this means that instead of instead of choosing a party to sue or suing multiple parties with the hope of collecting from one, you will now sue all parties simultaneously and collect from each according to their degree of fault. If you are the one being sued, you will no longer need to worry about having to pay the entire amount of the damages – especially if your percentage of fault is small. You will only have to pay your fair share and you will no longer have incur the additional costs of filing suit against another at-fault party.
Why the Change?
While joint and several liability was designed to protect the injured party and ensure he receives a full award, it has caused unintended consequences that many West Virginians feel impedes the exercise of justice for all the parties involved.
For example, unscrupulous attorneys may attempt to sue a mostly-innocent, but deep-pocketed party for the full award instead of pursuing the guilty party if his ability to pay is questionable. In the example above, if the manufacturer was found to be only 1% at fault and the driver 99% at fault, under the joint and several liability model, the plaintiff could choose to sue only the manufacturer for the full $100,000 if he suspected the driver could not pay the entire amount, could only pay it over a long period of time, or would become ineligible for collection by declaring bankruptcy. The manufacturer would then be left with an expensive lawsuit again the driver to collect the $99,000 owed to him.
For this reason, many wealthy potential defendants have chosen to settle for far more than their share of the damages out of fear of incurring the entire penalty, plus the expenses of two lawsuits.
What This Means For You
How this change in the law will affect your particular situation differs from case to case. In some cases, the change will have no effect the outcome – simply the manner by which you arrive at that outcome. In other case, it may affect the amount of award you can collect (if, for example, one of the parties in insolvent). To better understand your options and plan for your case, always consult an experienced attorney. At the Love Law Firm, we’re ready to help. Call us today for a consultation at (304) 344 5683.
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